Citation Nr: 1338408 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-43 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for status post right knee meniscectomy with degenerative osteoarthritis. 2. Entitlement to service connection for status post right knee meniscectomy with degenerative osteoarthritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from July 1970 to June 1973, from September 1977 to September 1983, and from April 2001 to June 2001. He also served with the U.S. Army Reserve until retirement in 2008; presumably this includes periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2013, the Veteran testified before the undersigned Veterans Law Judge during a Board hearing held at the RO. A transcript of the hearing has been associated with the claims file. During the hearing the Veteran submitted additional evidence, including duplicate copies of treatment records dated in February 2000. These submissions were accompanied by a signed waiver of initial RO consideration of this newly-submitted evidence. Therefore, the Board accepts this additional evidence for inclusion in the record. See 38 C.F.R. § 20.800 (2012). The issue of service connection for a right knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In February 2007, the RO denied service connection for status post right knee partial meniscectomy with mild degenerative osteoarthritis. The Veteran did not perfect an appeal of that decision. 2. Evidence received since the February 2007 decision relates to an unestablished fact necessary to substantiate the claim for service connection for a right knee disability, is not redundant or cumulative of evidence previously submitted, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW 1. The February 2007 RO decision which denied the Veteran's claim of entitlement to service connection for status post right knee partial meniscectomy with mild degenerative osteoarthritis is final. 38 U.S.C.A. § 7105(d)(3) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104(a); 20.1103 (2012). 2. Subsequent to the February 2007 RO decision, new and material evidence sufficient to reopen the claim for service connection for status post right knee partial meniscectomy with degenerative osteoarthritis has been received. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156(a), 3.304(f) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA) are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and interpreted by the United States Court of Appeals for Veterans Claims (the Court). (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006)). Given the determination reached in this decision, the Board is satisfied that adequate development has taken place and that there is a sound evidentiary basis for reopening the claim for service connection for a right knee disability without detriment to the due process rights of the Veteran. New and Material Evidence - Laws and Regulations In this case, the Veteran asserts that he has submitted new and material evidence to reopen his claim of entitlement to service connection for status post right knee partial meniscectomy with degenerative osteoarthritis and that the evidence is otherwise sufficient to award service connection for this disability. As a general rule, a previously denied claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to that claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). Therefore, the Board will undertake a de novo review of the new and material evidence issue. The Court has emphasized that the final sentence of 38 C.F.R. § 3.156(a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App.110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Once evidence is deemed new and material, the Board can proceed to review the claim based on the merits and the entire evidence of record. Right Knee A claim for service connection for status post right knee partial meniscectomy with mild degenerative osteoarthritis was previously considered and denied by the RO in a February 2007 rating decision. The Veteran failed to perfect an appeal with regard to the denial within 12 months. Therefore, the February 2007 decision is final. See 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. §§ 3.104, 20.302, 20.1103. As such, the Veteran's claim may be reopened only if new and material evidence has been secured or presented for the claim since the last final rating decision. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. The RO denied the claim in February 2007 finding that the evidence did not show that any current right knee disorder was related to service or any incident in service, including a twisting incident in February 2000 when the Veteran was in ACDUTRA status. At the time of the February 2007 RO decision that denied service connection for a right knee disability, the evidence of record consisted of service and Reserve treatment records; a formal finding regarding the unavailability of service treatment records for the Veteran's last period of active duty, from April 2001 to June 2001; service personnel records; VA treatment records dated in November 1999, March 2000, September 2003, and February 2006; and copies of VA examinations dated in June 1974, May 1987, June 1989, and January 2007. Service treatment records did not show any treatment for the right knee during the Veteran's first two periods of active duty, although a December 1971 record and March 1972 correspondence noted complaints of back pain radiating down the back of the legs ending at the knee. The significant clinical findings were thought to be associated with a ruptured intervertebral disc. An August 1978 record noted that the Veteran complained of back pain radiating to the right hip and right knee for the previous four to five days. The November 1999 VA medical record revealed that the Veteran injured his right knee a month before during the period between his second and third periods of active duty and was playing tennis for aerobic exercise. The knee was swollen, but seemed to be healing. Assessment included degenerative joint disease of the knee. Reserve treatment records included a February 2000 record from the Cherry Point Naval Hospital which revealed that the Veteran had twisted his right knee going down a gangplank on a ship he was attached to. An X-ray study showed a normal right knee and did not note joint effusion, but the examiner stated that traumatic effusion was definite and significant. It was also noted that subsequently it had resolved to about half of what it was and that the Veteran was comfortable in knee braces. Mild effusion was noted, and moderate tenderness, medially. Ligaments were stable. He was sent to quarters for 72 hours. A February 2000 treatment record from MacDill Air Force Base noted the injury to the right knee after the Veteran slipped on a ship's plank. Effusion and swelling were noted and assessment included probable ACL tear. Another February 2000 record noted pain and continued swelling since the injury with effusion and reduced range of motion. A March 2000 record noted that the Veteran had resumed running, but had one or two episodes of minor instability. A March 2001 Army Reserve Commission examination showed no complaints or evidence of any abnormal right knee disorder a little over a year after the right knee injury. Reserve treatment records also noted the Veteran's right knee surgery in 2006. A June 2006 record noted problems with swelling status post knee surgery and a July 2006 Reserve treatment record noted he was released to full unrestricted duty with the Reserve, except for running. Service personnel records revealed a line of duty determination for February 2000 and showed that the Veteran was in ACDUTRA status at the time he twisted his right knee descending a ship's gangplank. Right knee effusion was noted. In addition, copies of orders showed that the Veteran had been ordered to serve approximately three weeks of ACDUTRA in February 2000. The three earlier VA examinations of record were concerned with lumbar spine complaints and did not include any diagnosed disorder of the right knee. As a result of the January 2007 VA examination, however, the examiner diagnosed mild degenerative osteoarthritis of the bilateral knees and status post right knee partial meniscectomy. The VA osteopath who conducted the examination also opined that it was less likely as not that the Veteran's diagnosed right knee disorders were caused by or the result of the twisting injury in February 2000. The VA examiner noted that if the injury occurred in 2000, he would have expected mention of knee pain in post injury service records as this type of injury is not likely to spontaneously resolve and would cause continued intermittent pain and effusions. Further, the examiner explained that had the injury occurred in February 2000 he would definitely expect less of a delay (not a year) in seeking treatment or further investigation into the problem. Finally, the VA examiner noted that the Veteran led a relatively active lifestyle, both recreationally and vocationally, which would provide for ample other opportunities to injure his knee between 2000 and 2006. In November 2008 the Veteran filed a Notice of Disagreement (NOD) to the February 2007 decision. As this Notice of Disagreement was received more than 12 months since the February 2007 rating decision was issued, the RO properly construed this submission as an application to reopen the previously denied claim of entitlement to service connection for a right knee disability. See 38 C.F.R. § 30.302 (noting a timely NOD must be filed within 12 months of date agency mails claimant notice of determination). Since the February 2007 RO decision, the following evidence has been associated with the claims file: duplicate copies of some of the Veteran's service and Reserve personnel and treatment records, in particular those dated in February 2000 at the time of his right knee injury; additional VA outpatient treatment records; copies of treatment records at Fort Eustis dated from January 2003 to July 2003; a letter from his wife related to his claim for PTSD; a copy of a military pay voucher showing periods of INACDUTRA on February 26, 2000 and February 27, 2000; VA examinations dated in February 2012 concerning PTSD and the back; a copy of the transcript from the February 2013 Board hearing; and copies of written submissions from the Veteran and his representative about this and other claims. The August 2005 VA medical record includes an X-ray study of the right knee which showed chondrocalcinosis of the right knee with no evidence of arthritis, fracture, dislocation, bone destruction, or joint effusion. A February 2006 VA medical record noted the Veteran's twisting knee injury on a gangway and that he had pain, and catching, and swelling since. He denied symptoms prior to that event. Examination showed there was no effusion and ligaments were stable, but there was joint line pain. Assessment was chondrocalcinosis and probable medial meniscus tear of the right knee. A March 2006 VA medical record noted that a magnetic resonance imaging (MRI) scan of the right knee showed an undersurface tear of the medial meniscus, mild lateral meniscal degeneration, and probable chronic proximal patellar tendonitis. Arthroscopy was recommended due to the persistence of the Veteran's symptoms. May 2006 VA medical records showed the Veteran underwent a right knee arthroscopy. A July 2006 VA medical record noted that the Veteran had only very mild residual symptoms and that he wanted a release to full unrestricted activity but for running. The physician stated this was done because of his cartilage damage. A December 2009 VA medical record revealed that the Veteran's complaint of knee pain was greater in the right than the left. During his February 2013 Board hearing, the Veteran testified that in February 2000 he was on a training mission to Puerto Rico aboard the United States Army Vessel Mechanicsville transporting supplies from Norfolk to Puerto Rico. During a stay in St. Thomas, while boarding the ship, he said that someone called him from the wharf. When he turned to acknowledge the call, he said that the lugs of his combat boot got caught in the ribbing of the gangway and he twisted and tore his knee. He testified that he nursed it by himself on the voyage from St. Thomas to Norfolk, after which he was examined at the Cherry Point Naval Air Station. He said he had a leg brace put on there, which he wore for perhaps 14 days. He sailed back to North Carolina where the ship was berthed and then took a plane from North Carolina back to Tampa, Florida, his home station. He also testified that he was seen at the infirmary at MacDill Air Force Base about 10 days later, but was told the knee was already healing. While still in the Reserve, he had arthroscopic surgery on the right knee in 2006. He conceded that no doctor had ever told him his current right knee disorder was due to the February 2000 incident. In light of the foregoing, new and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability. While some of the evidence submitted subsequent to the February 2007 RO decision as noted above is duplicative, the transcript of the Veteran's Board hearing testimony and additional VA treatment records are new, in that they were not previously of record. This newly submitted evidence is also material. The claim was denied in February 2007 because the evidence did not show that any diagnosed right knee disorder was related to active service or to the Veteran's period of ACDUTRA in February 2000. Additional VA treatment records received subsequent to February 2007 include a May 2005 X-ray study, which showed chondrocalcinosis of the right knee, and a notation in February 2006 that since the twisting knee injury on a gangway the Veteran had pain, catching and swelling. Additional records also included a MRI scan showing a tear of the medial meniscus and the right knee arthroscopy in May 2006. The Board notes that the Veteran is competent to attest to symptoms he was capable of perceiving and to events he participated in. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The reports of the Veteran's right knee symptoms and injury and treatment since the February 2000 incident made during his February 2013 Board hearing are presumed credible for the purposes of reopening the claim as they have not been shown to be inherently false or untrue, or beyond the competence of the Veteran to make. See Justus, 3 Vet. App. at 513. As such, this is material evidence as well. Further, in Shade, the Court held that when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. The Board finds that this is such a case, given that the opinion of the January 2007 VA examiner appeared to express doubt about an injury to the right knee in February 2000, although the examiner stated that he had reviewed the claims file. The VA examiner also relied on what he believed was the absence of documented treatment or pain from 2000 to 2006. However, his report and opinion made no mention of the knee brace, joint effusion, and probable ACL tear noted in 2000 medical records. The VA examiner also appeared to be dubious about whether the Veteran's right knee was even injured in February 2000. The Board notes that his examination and opinion preceded the Veteran's Board testimony by six years. In sum, additional evidence received since the last final decision relates to an unestablished fact necessary to substantiate the Veteran's claim; that is, the additional evidence relates to the question of whether there is a present right knee disability that is related to a period of ACDUTRA in February 2007. Such evidence is neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim, and raises a reasonable possibility of substantiating the claim on appeal. As such, the claim of entitlement to service connection for status post right knee partial meniscectomy with degenerative osteoarthritis is reopened, and is further addressed in the Remand below. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). ORDER New and material evidence having been received, the claim for service connection for status post right knee partial meniscectomy with degenerative osteoarthritis is reopened. To this extent, and this extent only, the appeal is granted. REMAND Unfortunately, a remand is required for the Veteran's reopened claim for service connection for a right knee disability. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110. ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserves. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full-time duty performed by a member of the Reserves or the National Guard of any State. 38 C.F.R. § 3.6(d). Evidence in the claims file noted above indicates that the Veteran was in ACDUTRA status in February 2000 when he twisted and injured his right knee. However, the Board notes that a pay voucher dated during this time frame and found in the claims file showed that on both February 26, 2000 and February 27, 2000, the Veteran was in INACDUTRA status. In either event, the twisting of his right knee can be classified as an injury and not a disease and is potentially compensable as a service connected injury whether he was in ACDUTRA status or INACDUTRA status at the time he twisted his right knee in February 2000. The Board further notes though that no development has been done about the Veteran's apparent right knee injury in October 1999. According to a November 1999 VA medical record noted above, the Veteran injured his right knee a month before and was playing tennis for aerobic exercise. The knee was swollen, but seemed to be healing. However, assessment included degenerative joint disease of the knee. There is no indication from this record, or from other evidence in the claims file, whether this apparent right knee injury occurred during a period of ACDUTRA or INACDUTRA when the Veteran perhaps was doing physical training. In October 1999, the Veteran was still in the Army Reserve but was in between his second and third periods of active duty. His service treatment records from his third period of active duty in 2001 are missing and evidently unavailable as the RO issued a formal finding of unavailability in July 2006. Therefore, on remand the RO/AMC should determine whether the Veteran was in ACDUTRA or INACDUTRA status when he injured his right knee in October 1999. The Veteran has presented evidence of a currently diagnosed right knee disability, and lay evidence of his suspicion or belief that his right knee disorder was caused or aggravated by his twisting his right knee on the gangplank of a ship during a period of ACDUTRA in February 2000. The Board finds that additional development is required prior to appellate review to determine if his current right knee disability was incurred during his period of ACDUTRA in February 2000, or incurred during an as yet unverified period of ACDUTRA or INACDUTRA in October 1999. While the January 2007 VA examiner provided a medical opinion, the Board must find this six-year-old opinion inadequate. The VA examiner relied on the absence of documented right knee complaints in the then available medical evidence and prepared his opinion six years before the Veteran's Board hearing. Since this claim was reopened with newly submitted medical evidence relating to the right knee and with testimony from the Veteran about his alleged knee injury and subsequent symptomatology, the Board finds these reasons are sufficient to warrant another VA examination and medical opinion on remand. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Records generated by VA facilities are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, on remand, any VA medical records pertaining to treatment of the Veteran's claimed right knee disability not associated with the claims file should be associated with the claims file or with his Virtual VA eFolder. Accordingly, the case is REMANDED for the following action: 1. Even if the Veteran fails to respond to any query, the RO/AMC shall take appropriate steps to secure all of the Veteran's U.S. Army Reserve service personnel records related to the time period from October 1999 to November 1999, including a breakdown of any periods of ACDUTRA or INACDUTRA, through official channels or from any other appropriate source. These records should be associated with the claims file after which the RO/AMC shall determine whether the Veteran was performing ACDUTRA or INACDUTRA at any time during this time period. 2. Contact the Veteran and his representative and ask them to specify all private and VA medical care providers who treated him for any right knee disorder and whose records are not found within the claims file. Of particular interest are any records of evaluation and/or treatment of his right knee in October or November 1999 and records from the Tampa VAMC and the VA clinic in Pasco, Florida, from March 2011 to the present. After the Veteran has signed the appropriate releases, attempt to obtain and associate with the claims file any records identified by the Veteran that are not already associated with the claims file. If the records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. After completion of the above development, schedule the Veteran to undergo an appropriate VA examination, by an appropriate examiner other than the osteopath who conducted the January 2007 examination, to determine the nature, extent, onset, and etiology of any right knee disability. The claims file and a copy of this Remand shall be made available to and reviewed by the examiner. The examiner shall note such review, and identify important information gleaned therefrom, in an examination report. All indicated studies deemed necessary shall be performed, and all findings shall be reported in detail. In discussing his or her opinion, the examiner should acknowledge the Veteran's testimony regarding his history of a right knee disability. The examiner is requested to review all pertinent records associated with the claims file, and following this review and the examination offer an opinion as to the following: a) Whether it is at least as likely as not (a 50 percent probability or greater) that any currently diagnosed right knee disability is related to the Veteran's periods of active service, or to his verified period of ACDUTRA in February 2000, or to a verified or unverified period of ACDUTRA or INACDUTRA in approximately October 1999. A rationale or explanation is requested for all opinions. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. Thereafter, readjudicate the Veteran's reopened claim on appeal. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded a reasonable opportunity to respond. Thereafter, the case should be returned to the Board for the purpose of appellate disposition. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs